Here’s how a Trump judicial nominee really feels about laws protecting women against discrimination

Ian Millhiser

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

The Senate Judiciary Committee will hold a hearing on Wednesday on Texas Supreme Court Justice Don Willett’s nomination to a federal appeals court. Two decades earlier, however, Willett questioned the need for laws protecting women against discrimination in a memo to his boss, then-Gov. George W. Bush (R-TX).

The memo mocked the policy positions of the Texas Federation of Business and Professional Women, which Bush planned to praise in an official proclamation. “Issue-wise,” Willett wrote regarding the Texas women’s group, “they support the ERA, affirmative action, abortion rights, legislation adding teeth to the Equal Pay Act, etc. and they regularly line up with the AFL-CIO and similar groups.”

The future judicial nominee also urged Bush to strip language from the proclamation supporting women’s right to receive equal pay for equal work, as well as their right to be free from sexual harassment in the workplace. “I resist the proclamation’s talk of ‘glass ceilings,’ pay equity (an allegation that some studies debunk), the need to place kids in the care of rented strangers, sexual discrimination/harassment, and the need generally for better ‘working conditions’ for women (read: more government).”

Willett concluded his brief memo with a rhetorical flourish. “The proclamation can perhaps be re-worded to omit these ideological hot buttons while still respecting the contributions of talented women professionals. But I strongly resist anything that shows we believe the hype.”

Willett’s memo to Bush was flagged for senators in a letter signed by Vanita Gupta, who led the Justice Department’s Civil Rights Division under President Obama and now heads the Leadership Conference on Civil and Human Rights. It was first reported in a 2000 article published by the Austin American-Statesman, which is no longer available on the newspaper’s public website. ThinkProgress obtained a copy of the article through LexisNexis, a service that archives old news stories.

Willett served as Bush’s director of research and special projects at the time of his 1998 memo. The American-Statesman’s article included the full text of Willett’s brief memo, which was addressed to Bush’s director of policy Vance McMahan.

Vance — I resist the proclamation’s talk of “glass ceilings,” pay equity (an allegation that some studies debunk), the need to place kids in the care of rented strangers, sexual discrimination/harassment, and the need generally for better “working conditions” for women (read: more government). Issue-wise, they support the ERA, affirmative action, abortion rights, legislation adding teeth to the Equal Pay Act, etc. and they regularly line up with the AFL-CIO and similar groups. Of the 30 or so congressional candidates they’ve endorsed this cycle, all but one (Connie Morella of Md.) are Democrats. The group is quite active politically, has a PAC, lobbies, regularly issues a Congressional Voting Chart and publishes research papers on issues like pay equity, abortion rights, etc. The proclamation can perhaps be re-worded to omit these ideological hot buttons while still respecting the contributions of talented women professionals. But I strongly resist anything that shows we believe the hype. DRW

After the American-Statesman uncovered the memo, Gov. Bush’s office tried to distance the future president from Willett, describing the memo as “one person privately expressing his personal opinion to a colleague.” Bush eventually issued a proclamation that included the line “many working women still face resistance in attaining certain managerial positions, and some still earn less than what men are paid for the same job.”

Though this memo is nearly two decades old, Willett’s views do not appear to have moderated since he joined the Texas Supreme Court. In a 2015 opinion, Willett expressed sympathy for a discredited 1905 Supreme Court opinion called Lochner v. New York. Lochner‘s reasoning was used by conservative justices in the early part of the 20th century to strike down a wide range of laws protecting workers, including minimum wage laws and laws protecting the right to unionize.

One decision applying Lochner forbade laws that compel “any person in the course of his business and against his will to accept or retain the personal services of another” — a rule that would have prohibited anti-discrimination laws.

If confirmed, Willett will serve on the United States Court of Appeals for the Fifth Circuit for life. As a candidate, Donald Trump also named Willett as a potential nominee to the Supreme Court of the United States.

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Reposted from Think Progress

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

Posted In: Allied Approaches

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